High Court to Return to Dispute Between Tenn. Athletic Authority, Private School

The U.S. Supreme Court has agreed to hear an appeal by a state high school athletic association over whether the group's rules restricting the recruitment of student-athletes conflict with the First Amendment free speech rights of its member schools.

The court’s Jan. 5 decision to step into the case is the latest development in a protracted, and sometimes bitter, legal battle between the Tennessee Secondary School Athletic Association and private Brentwood Academy near Nashville.

The TSSAA contends that the private school agreed to the recruiting rules when it voluntarily joined the association and that the rules protect an important state interest in ensuring fair athletic competition.

The TSSAA imposed penalties on Brentwood Academy in 1997 for violations of the recruiting rule—most notably a letter that the school’s football coach sent to 8th grade boys inviting them to a spring football practice.

The boys had already agreed to enroll at the 600-student school the following fall. But under the athletic authority’s rules, the football coach could not communicate with them until they had attended the school for three days.

As a penalty, the TSSAA excluded the academy from football and basketball playoffs for two years, and the academy sued in the U.S. District Court in Nashville. Underlying the dispute was tension between Brentwood Academy, a perennial football powerhouse in the state, and public high schools in the Nashville area who were losing some of their talented student-athletes to the private school.

The dispute has since bounced between various federal courts, reaching the Supreme Court in its 2000-01 term on the question of whether the athletic authority acted with government authority when it enforced its rules. In 2001, the justices ruled 5-4 that the athletic group was in fact a “state actor” and thus subject to constitutional scrutiny for its actions.

Most recently, in March 2006, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 that the TSSAA had violated the academy’s First Amendment rights and its 14th Amendment procedural due-process rights.

Substantial State Interests

In the majority opinion, Judge Julie Smith Gibbons agreed that the TSSAA has substantial state interests in preventing the exploitation of student athletes, but said the letter that the coach sent to the students did not further such exploitation.

“As the district court pointed out, the students contacted by the letter and calls had already signed enrollment contracts with Brentwood Academy, and the letter and calls were directed to all male students who had done so,” the judge said.

The appeals court also found that the TSSAA violated the academy’s procedural due-process rights by not giving it adequate notice of the evidence it relied upon, or an opportunity to respond to that evidence, before penalties were imposed.

In its appeal to the Supreme Court in Tennessee Secondary School Athletic Association v. Brentwood Academy (Case No. 06-427), the association is challenging both of those rulings.

“[T]his court has held that the government may impose explicit conditions on the speech of voluntary participants in government programs, simply as a product of its right to control the limits and purposes of the program,” the TSSAA said in its appeal. “Brentwood knew of this [recruiting] rule and voluntarily agreed to play by it, and the rule restricts Brentwood’s ‘speech’ only in the narrow context of its actual participation in the competitive athletic program it chose to join.”

The justices are expected to hear arguments in the case in April and issue a decision by late June.

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